In the High Court of South Africa s7

IN THE HIGH COURT OF SOUTH AFRICA

(FREE STATE PROVINCIAL DIVISION)

Case No : 1885/2003

In the matter between:

MOTLATSI BARNABAS MOLEFE Applicant

and

DIHLABENG LOCAL MUNICIPALITY First Respondent

MP JACOBS Second Respondent

GC PRETORIUS Third Respondent

HJ FABRICIUS Fourth Respondent

KE KHABANE Fifth Respondent

OTHER RESPONDENTS : MEMBERS Sixth to

OF THE LOCAL GOVERNMENT Fortythird Respondents

______

CORAM: HANCKE J

______

HEARD ON: 31 JULY 2003

______

JUDGMENT DELIVERED ON: 14 AUGUST 2003

______

The applicant was the first respondent’s erstwhile municipal manager. On 25 September 2002, the applicant was suspended pending an investigation into allegations of misconduct and for the purpose of laying charges against the applicant. On 1 November 2002 charges were laid against the applicant and he thereafter was suspended pending the outcome of the disciplinary proceedings that were scheduled. The disciplinary proceedings were scheduled to begin on 4 December 2002. On that date the applicant obtained a postponement of the proceedings to 19 December 2002 to enable respondents to consider a request for legal representation as well as to obtain particulars to the charges. Those proceedings were then again postponed to 28 March 2003.

On that occasion the applicant challenged the formal appointment of the Presiding Officer and Prosecutor on the basis that they had not been appointed by the mayor, the second respondent, and were therefore unable to prosecute and preside over the proceedings. The contentions of the applicant were upheld by the then Presiding Officer, who ruled that he was not validly appointed, and withdrew from the proceedings resulting in the further postponement.

Subsequent thereto, the second respondent, in his capacity as mayor, specifically instructed attorneys Webber, Wentzel Bowens to obtain the services of adv Pretorius SC (the third respondent) to act as prosecutor, and adv Fabricius SC (the fourth respondent) to act as Presiding Officer in disciplinary proceedings that were scheduled to commence on 19 May 2003. In the meantime the applicant, on various occasions, requested further particulars to the charges contained in the charge sheet. The first request was dated 15 November 2002 and its reply dated 22 November 2002. The second request is dated 3 December 2002 and there was also a third request during May 2003, and a reply thereto dated 19 May 2003.

The original charge sheet consisted of eleven charges. Three further charges were added for the hearing scheduled for 28 March 2003 and a fifteenth charge was added for the hearing of 19 May 2003. It is important to note that the applicant did not take issue with the particularity which had been provided until the present application was argued, when Mr Olivier, counsel for the applicant, submitted that the applicant was prejudiced due to the fact that certain particulars were supplied at a very late stage.

On 19 May 2003 the applicant contested the legality of the appointment of the third and fourth respondents as the Prosecutor and Presiding Officer respectively. The basis of the challenge was that the second respondent, as the validly appointment mayor of the first respondent, and the person entrusted with the obligation under the disciplinary code to appoint a Prosecutor and a Presiding Officer, had not personally appointed the third and fourth respondents. It appears that the second respondent as mayor wrote the following letter to Webber, Wentzel Bowens:

“You are hereby requested to assist with the appointment of Advocate Hans Fabricius as Advocate ESJ van Graan SC is unavailable to chair the disciplinary hearing. Please reply promptly on the appointment as Mr Molefe must be informed accordingly.”

A similar letter was also written to the said attorneys in respect of the third respondent’s appointment as prosecutor. The contentions of the applicant relating to the validity of the third and fourth respondents’ appointment were summarily dismissed by the fourth respondent.

At that point, the applicant requested a postponement for the purpose of launching a review application of the fourth respondent’s decision. According to the record of the disciplinary hearing, the following transpired between the legal representatives:

(Applicant’s attorney): “Mnr die voorsitter my instruksies op hierdie stadium om te vra vir uitstel van hierdie verhoor. Vier weke sodat in terme van die reëls van die Hooggeregshof geldend in die Vrystaat, ‘n hersieningsaansoek te bring, ten aansien van die beslissing ..... Op advies van ‘n snr advokaat van Bloemfontein is ons geadviseer om te vra uitstel vir ‘n maand, sodat die nodige aansoek gebring kan word.”

(Fourth respondent): “U moet natuurlik onthou dat u het altyd die reg om die hele verrigtinge aan die einde op hersiening te neem...... U weet ook dat die howe nie geneë is om in hangende verrigtinge in te meng nie...... ”

(Third respondent): “..... ek weet ons het vyf dae opsy gesit, ek dink ons kan net vinniger klaarmaak, dat ‘n hof moontlik as hy jou op hersiening, dink dat dit verkeerd was, ons is bereid om daardie risiko te neem, ek vra dat die verrigtinge voortgaan. ....”

(Applicant’s attorney): “Sal u ons dan verskoon mnr die voorsitter? .....”

(Third respondent): “Mnr die voorsitter kan ons net kry, die rekord gaan getik word, as daar ‘n hersieningsaansoek is, kan ons net duidelikheid kry, mnr Diener en mnr Molefe wat ‘n toegelate prokureur is verstaan dat as hulle nou die verrigtinge verlaat, die verrigtinge in hulle afwesigheid gaan voortgaan. Dat getuienis aangebied gaan word en dat ons hier u gaan versoek om tot ‘n bevinding te kom en dat ons sal verkies dat as u op daai bevinding kom, as dit getoets is deur kruisverhoor en mnr Molefe die geleentheid gehad het om sy weergawe te stel, ..... natuurlik as mnr Molefe afstand doen van daardie reg wat hy het deur die verrigtinge te verlaat, dan is dit sy keuse.”

Before permitting the fourth respondent to make a ruling on the application for postponement, the applicant withdrew from the proceedings and left them in the full knowledge that the proceedings would continue in the applicant’s absence, including knowledge that evidence would be led which would proceed unchallenged, and with knowledge of the fact that the matter was set down for five days. The proceedings continued thereafter in the applicant’s absence and at the conclusion of the leading of evidence on 19 May 2003, were adjourned to the next day to allow fourth respondent to consider the evidence and reach a finding.

The next day the fourth respondent found applicant guilty on the majority of charges referred by the first respondent and enquired into factors in mitigation for the purpose of his consideration of an appropriate penalty. After such information as was at the disposal of the third respondent was presented, and after consideration thereof, the fourth respondent concluded that the appropriate penalty would be the dismissal of the applicant and made such a ruling.

Applicant thereafter launched an urgent application seeking an order:

Declaring the second respondent not to be the mayor of the first respondent municipality;

Reviewing and setting aside:

(a) The second respondent’s decision to appoint the third and the fourth respondents as the Prosecutor and the Presiding Officer respectively in disciplinary proceedings pertaining to the applicant;

(b) Fourth respondent’s refusal to postpone the disciplinary hearing on 19 May 2003, and/or the decision to proceed with the disciplinary hearing on 20 May 2003; alternatively, setting aside the disciplinary proceedings of 19 and 20 May 2003.

Against first respondent, to pay the applicant the amount of R23 333,34, being the overdue arrear increments for the period 1 November 2002 to date hereof, as well as the annual bonus to the equivalent of month’s salary, due and payable by the first respondent to the applicant as well as his full monthly remuneration as employee as from 1 May 2003 until the finalisation of this application.

As far as paragraph 3 is concerned, Mr Sutherland, counsel for the respondents, submitted that the subsequent interim order, which was granted by consent, disposed of this issue and the court may ignore it when adjudicating the matter. If a dispute between the parties develops in this regard, the applicant will be entitled to approach this Court to apply for relief on the same papers duly amplified, if necessary.

It should be noted that none of the relief sought in these proceedings was advanced either in fact or in argument at the hearing before the fourth respondent, and they constitute entirely novel grounds in the dispute between the applicant and the first respondent.

Mr Olivier, counsel for the applicant, argued that the applicant has made out a proper case for the relief claimed. I deem it appropriate to deal with the submissions made by Mr Olivier in the sequence advanced by him in his heads of argument, and in argument in this Court.

DISCIPLINARY HEARING:

(a) Allegation that the matter lapsed:

The first alleged irregularity pertaining to the disciplinary proceedings was the fact that the matter allegedly lapsed. According to the argument advanced on behalf of the applicant, only charge nr 15 was a new charge that was introduced in the charge sheet dated 7 May 2003. Applicant was previously charged with the remainder of the charges on the said charge sheet, in respect of which charges he was suspended for both the periods envisaged in paragraph 16 of the code of conduct. It was submitted on behalf of the applicant that the further suspension of one month already lapsed by 28 March 2003 without him having been properly charged.

On a previous occasion, between the same parties in respect of the same issue, Rampai, J stated the following in MOTLATSI BARNABAS MOLEFE v DIHLABENG LOCAL MUNICIPALITY AND OTHERS (case nr : 4495/2002 heard on 2 May 2003 and judgment delivered on 5 June 2003) at p 8-10 paragraph 11:

“Paragraph 16(b) states that where the disciplinary prosecutor fails to charge the accused employee within the period of suspension in terms of paragraph 15 then the entire inquiry itself lapses and the employee must return to work. In the instant case there was no failure of any sort on the part of the disciplinary prosecutor. The applicant was timeously charged during the second suspension. The further suspension or the third suspension of 4 November 2002 was really unnecessary since the applicant had already been charged. Implicit in the provisions of paragraph 12 and paragraph 15 read with paragraph 16 is the logical idea that once an accused employee has been formally notified of the charge he or she remains suspended until the disciplinary inquiry is finalized. The moment the employee is charged the mayor’s role of suspending such an employee at intervals ceases. The presiding officer of the disciplinary inquiry becomes ceased with the matter. The practical effect of the charging is that the applicant remains suspended until the end of the disciplinary inquiry. I can find nothing in the Disciplinary Code and Procedure to support the applicant’s restrictive construction that his suspension expired on 5 December 2002 because the mayor did not renew his suspension or that he did not suspend him further. It was not required of the mayor to keep on suspending the employee periodically as long as the disciplinary inquiry endured. The primary purpose of the mayoral suspension be it in terms of paragraph 13 or paragraph 15 is to give the disciplinary prosecutor an opportunity to charge the accused employee and also to protect an accused employee against the agony of unnecessary or deliberate delays on the part of a punitive management. That much is clear upon the proper construction of paragraph 16 read with those two provisions. To construe those two provisions as requiring that the disciplinary inquiry has to be finalized during the suspension period as the applicant says can lead to absurdity. The matter, in other words, the disciplinary case lapses if the employee is not charged and not if the inquiry is not finalized within the suspension period. That is the crux of the matter.”

I am in agreement with the aforesaid.

(b) Further particulars:

Mr Olivier submitted that the supply of further particulars on the date of the hearing is contrary to the principle that an accused person is entitled to as much information as necessary for a proper preparation of his defence. It is however important to note that the said particulars were only furnished in respect of charge 15 and that applicant’s attorney never objected to it at or during the disciplinary hearing. The case relied upon by Mr Olivier in this regard, ie REX v MOYAGE AND OTHERS 1958(3) SA 400 (A) is to the effect that deficiencies in the charge sheet could have been corrected without prejudice if raised at the trial and could not be relied upon for the first time on appeal (p 412D-413E), In my view there is no substance in this submission.

As far as the continuation of the application is concerned, the applicant’s attorney applied for a postponement for a period of four weeks in order to approach this Court for a review. Before the fourth respondent made a decision not to postpone the proceedings the applicant’s attorney excused himself. It appears from the proceedings that the fourth respondent intended to refuse the application for postponement and on the assumption in favour of the applicant that he refused a postponement, the question is whether such decision was irregular, or not. It also appears that only in reply the applicant complains about ill preparedness for the first time. They were specifically not raised before the disciplinary hearing or in the applicant’s founding affidavit and they stand to be disregarded, and to be struck out.